In a legal brief filed this week, the Attorney General's Office assails not only the Berkshire Museum's plan to sell artworks, but also a related plan by trustees to shift the museum's focus to science and nature.

EAGLE FILE

Posted
Thursday, January 4, 2018 9:03 pm

By Larry Parnass, The Berkshire Eagle

PITTSFIELD — Some tea leaves aren't that hard to read.

On the same day the Attorney General's Office said work continues on its Berkshire Museum inquiry, its lawyers suggested that on key issues, the verdict is already in.

In a 32-page legal brief filed Wednesday with the Massachusetts Appeals Court, the office again assails a plan by trustees to sell 40 works from the museum's collection.

The brief's main purpose is to refute claims advanced by the museum's lawyers Dec. 4. That is when the museum challenged a Massachusetts Appeals Court justice's decision to halt proceedings in Berkshire Superior Court. The filing kicked off an appellate review.

The state's brief makes plain the Attorney General's Office believes museum trustees would commit a hat trick of legal errors if they carry through with the controversial art sale they announced July 12 — which has drawn international attention and remains snarled in litigation.

The state's argument includes citations from legal cases dating to 1850 and even further back, to before American independence. Even in Colonial America, the brief says, attorneys general played a role in overseeing charitable trusts "from the application of the [English] Crown's powers."

All of the attorney general's arguments this week repeat views expressed over the last two months in briefs and in a Nov. 1 hearing before Judge John A. Agostini of Berkshire Superior Court.

At issue is not only the sale of artworks, the state says, but a related plan by trustees to shift the 114-year-old museum's focus to science and nature.

According to the brief, filed by Assistant Attorney General Andrew Batchelor, selling the art, including two paintings given to the museum by artist Norman Rockwell, would be improper for the following reasons:

- Mission in retreat: The institution founded in 1903 by Zenas Crane is duty-bound to continue to operate as an art museum, the brief says. The office has said that the proposed sale would remove the museum's most valuable and important artworks.

"The Museum's decision to reinvent itself — to change itself from an art museum into a history and science center with no artistic mission or connection to the art museum community — is a violation of the Museum's charitable and legislative mandate to be a museum of art, science, and history," Batchelor's brief says.

"Even in hard times, charities cannot unilaterally sell their assets and use the proceeds for a purpose other than that for which they were intended," he writes.

The museum's lawyers refute that, saying the change does not trigger a requirement that a charitable institution ask for a court's permission to alter its long-standing mission.

- Early works restricted: Even before the injunction halted the Sotheby's auctions, the museum removed 21 works from scheduled sales. It is apparent now that the change followed a finding by staff for Attorney General Maura Healey that earlier restrictions remained in effect, rendering the sales unlawful.

As Batchelor writes, "The Museum has a duty to maintain the restriction that none of the paintings that were donated to the Museum's predecessor, the Berkshire Athenaeum, before 1932 (including 19 of the 40 works designated for sale) 'shall ever be removed from the town of Pittsfield.' "

The museum has produced copies of accession slips for 38 of the 40 works, none of which note restrictions. It maintains that it faces no barrier to selling the pieces.

- Rockwell gifts: Though the museum believes it holds the right to sell the two Rockwell paintings, the state asserts in its latest brief that a sale would violate the late artist's wishes.

"At the time Norman Rockwell donated his works of art, it was accepted as a `given' that the works would be permanently retained in the collection. The artist also indicated that he intended that his art remain in the Museum's 'permanent collection' for the community and the 'favorite art museum' that he respected and cherished," the brief says.

It adds, "Therefore, the Museum is barred from selling these two items."

Other error

On top of that, the office says it believes trustees "breached" their duty in the decision to sell art.

"The Museum's officers and trustees breached fiduciary obligations to the organization and its charitable purpose," Batchelor writes. "The basic standard of care is one of 'complete good faith plus the exercise of reasonable intelligence.' ... The Board's actions were not reasonable under the circumstances. The needs of the Museum were substantial but did not require selling its art collection to the highest bidder."

The brief notes that while a consultant said the museum needed to raise $25.6 million to fix a recurring annual deficit, trustees opted instead to go for more.

"When the Museum learned that its art collection was worth $54 million to $95 million, almost all of which ($47 million to $85 million) was attributed to the 40 most valuable works, it abandoned the reachable goal of $25.6 million and pursued paths of at least $52 million, each of which required the Museum to sell its art collection."

"That is not a reasonable approach for a Museum mandated by law to be a museum of art, science, and history," the brief says.

In its first test before a judge, the attorney general's lawyers came up short.

Agostini didn't agree with their Nov. 1 arguments in the Pittsfield court, and in subsequent briefs. Agostini denied their request for a preliminary injunction against the start of art sales the week of Nov. 12. Three days after Agostini turned it down, the office secured an injunction from the Appeals Court.

That order remains in effect through Jan. 29, the same date by which the attorney general's team says it will wrap up its investigation, provided that the museum complies with its requests for documents and for interviews with employees and at least one trustee.

One interview will be with Van Shields, the museum's executive director.

Carol Bosco Baumann, the museum's spokeswoman, said Thursday officials are responding to those requests.

"We are working now to set a time convenient to the Attorney General's Office and in consideration of Van Shields' part-time status after heart surgery," she said in an email, in response to a question from The Eagle.

Shields took a two-month medical leave, from late October to late December, to undergo heart valve surgery.

Defending review

In its Wednesday brief, the Attorney General's Office also defends its role in conducting the museum probe.

Lawyers with the Boston firm WilmerHale, representing the museum, argued in their Dec. 4 brief that the attorney general needs a judge's authorization to conduct the review that's still underway.

The museum's lawyers repeatedly refer to that "investigation" using quotation marks, suggesting the term is a misnomer.

Healey's office counters in its brief that it holds "a long-established authority — pursuant to common law and statute — to investigate the Museum's drastic decision to dispose of its fine art collection. The AGO is charged with supervising, regulating, and investigating charities under common law and statutory authority."

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-496-6214.

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